Mowery v. Social Security Administration, Commissioner of
MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge H Bruce Guyton on 9/29/17. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
DAVID A. MOWERY,
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the
Federal Rules of Civil Procedure, and the consent of the parties [Doc. 22]. Now before the Court
is the Plaintiff’s Motion for Judgment on the Pleadings and Memorandum in Support [Docs. 19 &
20] and the Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 23
David A. Mowery (“the Plaintiff”) seeks judicial review of the decision of the
Administrative Law Judge (“the ALJ”), the final decision of the Defendant Nancy A. Berryhill,
Acting Commissioner of Social Security (“the Commissioner”). For the reasons that follow, the
Court will DENY the Plaintiff’s motion, and GRANT the Commissioner’s motion.
On December 13, 2012, the Plaintiff filed an application for disability insurance benefits
pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., claiming a period of
disability that began on November 15, 2011. [Tr. 553, 181-82]. After his application was denied
During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner
Carolyn W. Colvin. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted as the Defendant in this case.
initially and upon reconsideration, the Plaintiff requested a hearing before an ALJ. [Tr. 139].
Following a hearing [Tr. 68-94], the ALJ found the Plaintiff was “not disabled” [Tr. 53-63]. The
Appeals Council ultimately denied the Plaintiff’s request for review [Tr. 1-4], making the ALJ’s
decision the final decision of the Commissioner.
Having exhausted his administrative remedies, the Plaintiff filed a Complaint with this
Court on August 11, 2016, seeking judicial review of the Commissioner’s final decision under
Section 405(g) of the Social Security Act. [Doc. 1].
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled
pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
Substantial evidence is “more than a scintilla of evidence but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the
Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).
On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.
Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
Disability” is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve months.”
§ 423(d)(1)(A); 20 C.F.R. § 404.1505(a).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four
and is “based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §
An RFC is the most a claimant can do despite his limitations.
404.1545(a)(1). The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d
525. The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner
must prove that there is work available in the national economy that the claimant could perform.
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S.
137, 146 (1987)).
On appeal, the Plaintiff maintains that the ALJ’s decision is not supported by substantial
evidence. First, the Plaintiff contends that the ALJ failed to account for “moderate” mental
limitations, opined by non-examining state agency sources, in assessing the Plaintiff’s RFC. [Doc.
20 at 15-17]. Second, the Plaintiff submits that the ALJ did not properly weigh the medical
opinions of his treating physician, William Robinson, M.D. [Id. at 18-19]. Next, the Plaintiff
asserts that the ALJ did not properly consider and assess the Plaintiff’s complaints of pain. [Id. at
19-21]. Lastly, the Plaintiff argues that the hypothetical question posed to a vocational expert
(“VE”) failed to account for all of the Plaintiff’s mental limitations. [Id. at 16-17]. The Court
will address each alleged error in turn.
RFC - Mental Limitations
The Plaintiff argues that the ALJ failed to properly consider numerous “moderate” mental
limitations imposed by non-examining state agency sources Rebecca Joslin, Ed.D., and Marvin
Blase, M.D. [Doc. 20 at 15-16]. In addition, the Plaintiff submits that the ALJ’s reliance on
treatment notes from treating physician, Dr. Robinson, to demonstrate the absence of concentration
issues was error because “Plaintiff was never examined for concentration issues by Dr. Robinson.”
In relevant part, the ALJ determined that the Plaintiff has an RFC to “perform simple,
routine, repetitive tasks, meaning that the [Plaintiff] can apply common sense understanding to
carry out, oral, written, and diagrammatic instructions.” [Tr. 58.] In addition, the Plaintiff “can
frequently interact with the public and coworkers.” [Id.]. In reaching this determination, the ALJ
addressed, among other evidence, the medical opinions of non-examining state agency sources,
Dr. Joslin and Dr. Blase. [Tr. 59-61]. The ALJ gave “some weight” to the opinions of both doctors.
The Court finds that the ALJ properly considered the Plaintiff’s mental limitations in
determining the Plaintiff’s RFC. The Court finds no merit in the Plaintiff’s contention that the
ALJ did not properly consider the “moderate” limitations opined by Dr. Joslin and Dr. Blase. In
this regard, the Court observes that the “moderate” limitations the Plaintiff refers to are findings
the doctors made in a Psychiatric Review Technique and non-RFC findings in a Mental Residual
Functional Capacity Assessment.
As to the Psychiatric Review Technique, Social Security Ruling 96-8p explains that the
technique “assess an individual’s limitations and restrictions from a mental impairment(s) in
categories identified in the ‘paragraph B’ and ‘paragraph C’ criteria of the adult mental disorders
listings.” 1996 WL 374184, at *4 (July 2, 1996). The “limitations identified in the ‘paragraph B’
and ‘paragraph C’ criteria are not an RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation process.” Id. (emphasis added). It is
well established that limitations opined with regard to the “paragraph B” and “paragraph C” criteria
will not necesarily result in identical or even similar limitations within the RFC determination or
subsequent steps of the sequential evaluation. See Turbeville v. Colvin, No. 1:12-CV-00061, 2014
WL 6605483, at *10 (M.D. Tenn. Nov. 19, 2014) (“[Step 3 and the RFC] are separate steps and a
finding at one step does not necessarily equate to the same finding being made at a later step.”);
Pinkard v. Comm’r of Soc. Sec. Admin., No. 1:13CV1339, 2014 WL 3389206, at *10 (N.D. Ohio
July 9, 2014) (finding that “the ALJ does not have to include paragraph B finding in his RFC
finding” and concluding that “the ALJ was correct in finding that Plaintiff had moderate limitations
in evaluating her mental impairment under the listings at step three of the sequential evaluation
process, and in not including a ‘moderate limitation in concentration, persistence, and pace’ in his
residual functional capacity finding at steps four and five”); Bailey v. Astrue, No. CIV.A. 10-227JBC, 2011 WL 3880503, at *2 (E.D. Ky. Aug. 31, 2011)(“The RFC assessment takes into account
all of the relevant evidence in the case record, . . . and the ALJ was not required to specifically
adopt ‘paragraph B’ findings in his development of a complete and accurate assessment of Bailey’s
mental impairment.”) (citing Soc. Sec. Ru. 96-8p, 1996 WL 374184). Therefore, the Court finds
that the ALJ was not required to include limitations identified in the Psychiatric Review Technique
into the RFC.
With regard to the remaining “moderate” limitations cited by the Plaintiff, these limitations
can be found in the Mental Residual Functional Capacity Assessments completed by the doctors.
[Tr. 104-105, 120-121]. While the assessments opine on the Plaintiff’s ability to perform different
work related mental functions, the Plaintiff does not cite to actual RFC findings. Within the
assessments, prior to making an RFC finding, a series of detailed questions are first asked to “help
determine the individual’s ability to perform sustained work activities.”
[Tr. 104, 120].
Importantly, this questionnaire section is not an RFC determination but rather a worksheet to help
assess a claimant’s RFC. [Id.]. The actual RFC finding is recorded at the end “in the narrative
discussion(s).” [Id.]. The “moderate” limitations cited by the Plaintiff fall with the questionnaire
section. The Plaintiff has not cited, and the Court is not aware of, any regulation, agency ruling,
or case law that would require the ALJ to specifically assess or adopt any of the limitations opined
therein which, again, are not RFC findings.
Accordingly, the ALJ was only required to, and indeed did, consider the RFC findings
made by Dr. Joslin and Dr. Blase. The doctors rendered identical opinions in their respective
Mental Residual Functional Capacity Assessments as follows: the Plaintiff could understand and
recall simple instructions and work locations; he could perform simple tasks and sustain adequate
concentration, persistence, and pace throughout the workday; he could function in a position that
did not require relating to the public and could sufficiently handle interaction with coworkers; and
he could avoid hazards and adopt to workplace changes but would function best in a workplace
setting with defined workplace tasks and not be required to develop independent workplace goals.
[Tr. 106, 122]. The ALJ considered Dr. Joslin’s and Dr. Blase’s opinions, assigned them “some
weight,” and explained his reasons for the weight assigned. [Doc. 60-61]. The Court finds no
error in the ALJ’s consideration of Dr. Joslin’s and Dr. Blase’s mental limitations.
The Court also finds no merit in the Plaintiff’s arguments regarding treating physician, Dr.
Robinson. In support of his contention that the ALJ did not properly consider his “moderate”
mental limitations, the Plaintiff first complains that the ALJ erroneously relied on Dr. Robinson’s
treatment notes in “essentially” concluding that the Plaintiff “had no such problems” with
concentration. [Doc. 20 at 15]. The Plaintiff’s argument is without merit. First, the ALJ relied
on Dr. Robinson’s treatment notes at step three in assessing the Plaintiff’s concentration,
persistence, and pace under the “paragraph B” criteria. [Tr. 57]. At step three, the ALJ specifically
found that the Plaintiff had “moderate difficulties” in this area. [Id.]. Thus, Dr. Robinson’s
treatment notes assisted the ALJ in finding moderate limitations. Second, the ALJ did not rely on
Dr. Robinson’s treatment notes to conclude the Plaintiff “had no such problems” in concentration,
as the Plaintiff claims. To the contrary, the ALJ concluded that the Plaintiff had “moderate
difficulties,” and Dr. Robinson’s treatment notes “did not exhibit significant difficulties with
concentration.” [Tr. 57] (emphasis added). The Plaintiff also argues that the ALJ could not rely
on Dr. Robinson’s treatment notes because the doctor “never examined [the Plaintiff] for
concentration issues.” [Doc. 20 at 15]. Dr. Robinson did treat the Plaintiff’s complaints of anxiety
and depression, and examination findings typically documented normal insight, judgment, mood,
effect, and orientation, as well as intact recent and remote memory. [Tr. 414, 471, 486, 493, 525,
530, 534]. Given Dr. Robinson’s treatment and examination findings, the Court finds that it was
reasonable for the ALJ to conclude that the Plaintiff “did not exhibit significant difficulties with
Accordingly, the Court finds that the ALJ properly considered the Plaintiff’s mental
limitations in assessing the Plaintiff’s RFC.
Opinions of Treating Physician Williams Robinson, M.D.
The Plaintiff submits that the ALJ committed reversible error by failing to assign
controlling weight to Dr. Robinson’s opinions.
On March 28, 2014, Dr. Robinson completed a “Treating Source Statement Physician
Capacities Evaluation,” wherein he responded to multiple-choice questions regarding the
Plaintiff’s physical capacity to perform different work-related activities. [Tr. 480-81]. Therein,
Dr. Robinson opined that the Plaintiff could sit for three hours at one time and up to five hours
total, and he could stand and walk for one hour at one time and stand or walk up to two hours total.
[Tr. 480]. He could use his hands for repetitive actions, such as simple grasping, pushing and
pulling, and fine manipulation, but could not use his feet or legs for repetitive movements, such as
operating foot controls. [Id.]. As to lifting, the Plaintiff could constantly lift up to four pounds,
frequently lift between five and 19 pounds, occasionally lift 20 to 49 pounds, and rarely lift 50 to
100 pounds. [Id.]. With regard to carrying, he could constantly carry up to four pounds, frequently
carry five to nine pounds, occasionally carry 10 to 19 pounds, rarely carry 20 to 49 pounds, and
never carry 50 pounds or more. [Tr. 481]. The Plaintiff could frequently reach above shoulder
level, occasionally bend, rarely squat or climb, and never crawl. [Id.]. He had mild restrictions
against driving automotive equipment, moderate restrictions against exposure to marked changes
in temperature and humidity, dust, fumes, and gases, and was completely restricted against
unprotected heights and moving machinery. [Id.]. Finally, Dr. Robinson indicated that the
Plaintiff’s pain was “moderately severe.” [Id.].
Dr. Robinson also completed a second form on February 12, 2015, in connection with the
Plaintiff’s request for disability benefits from a private insurer. [Tr. 561-62]. Dr. Robinson
documented the Plaintiff’s reported symptoms of epigastric pain, lower extremity neuropathic
pain, and low back pain. [Tr. 561]. He also noted diagnoses of chronic abdominal pain, diabetic
peripheral neuropathy, and lumbar disc disease and documented examination findings of painful
and decreased range of motion of the lumbar spine and decreased feeling in the lower extremities.
[Tr. 561]. Dr. Robinson concluded that the Plaintiff cannot perform activities of daily living. [Tr.
The ALJ assigned “little weight” to Dr. Robinson’s opinions. [Tr. 60]. As to the March
28, 2014 treating source statement, the ALJ found the opinion did not provide any specific support
for the limitations opined therein and there was no objective evidence in the record to support the
standing, walking, and sitting limitations. [Id.]. As to the February 12, 2015 opinion, the ALJ
found that Dr. Robinson did not provide any “specific reasons beyond pain and decreased feeling,
which did not help assess what the claimant is actually capable of performing.” [Id.].
Under the Social Security Act and its implementing regulations, if a treating physician’s
opinion as to the nature and severity of an impairment is (1) well-supported by medically
acceptable clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other
substantial evidence in the case record, it must be given “controlling weight.” 20 C.F.R. §
404.1527(c)(2). When an opinion does not garner controlling weight, the appropriate weight to be
given to an opinion will be determined based upon the length of treatment, frequency of
examination, nature and extent of the treatment relationship, amount of relevant evidence that
supports the opinion, the opinion’s consistency with the record as a whole, the specialization of
the source, and other factors which tend to support or contradict the opinion. § 404.1527(c)(1)(6).
When an ALJ does not give a treating physician’s opinion controlling weight, the ALJ must
always give “good reasons” for the weight given to a treating source’s opinion in the decision. Id.
A decision denying benefits “must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for the weight.” Soc. Sec. Rul. 96-2p, 1996 WL 374188
at *5 (July 2, 1996). Nonetheless, the ultimate decision of disability rests with the ALJ. See King
v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x
988, 992 (6th Cir. 2007).
The Court finds the ALJ provided “good reason,” supported by the record, for assigning
little weigh to Dr. Robinson’s opinions. As to the February 12, 2015 opinion, the Plaintiff
disagrees with the ALJ’s finding that Dr. Robinson did not give any specific reasons for his opinion
other than noting pain and decreased feeling. [Doc. 20 at 18]. The Plaintiff cites to his diagnoses
of chronic abdominal pain, diabetic peripheral neuropathy, and lumbar disc disease.
However, a diagnosis alone says nothing about the severity of a condition. Higgs, 880 F.2d at 863.
The Plaintiff further cites to his symptoms of pain and examining findings of decreased range of
motion of the lumbar spine. [Doc. 20 at 18]. The ALJ, however, considered the opinion’s report
of pain and decreased feeling but reasonably observed that these findings do not translate into what
the Plaintiff can and cannot do in functional terms. See Carney v. Colvin, No. 3:12-CV-00744,
2015 WL 5089783, at *8 (M.D. Tenn. Aug. 17, 2015) (upholding an ALJ’s assignment of little
weight to an examining source who “fails to give specifics as to what actual limitations were
imposed on [the claimant’s] functional ability”).
As to the March 28, 2014 treating source statement, the Plaintiff argues that contrary to the
ALJ’s finding, Dr. Robinson’s treatment notes and the record support the limitations opined. [Doc.
20 at 18]. The Plaintiff cites to various medical records, including radiographic films of the lumbar
and lumbosacral spine, an upper gastrointestinal endoscopy, CT scans of the abdomen, pelvis,
chest, and thorax, and an MRI of the brain and neck. [Tr. 271, 307, 402, 404, 423, 432, 536].
These imaging studies and diagnostic tests, however, almost exclusively document mild to
unremarkable and normal findings. [Id.]. The Plaintiff also cites to “positive examination
findings” by Dr. Robinson but findings include normal gait, station, muscle strength, and tone
despite “abnormal” sensation. [Tr. 418-19]. Additionally, the Plaintiff cites to a referral to a
gastroenterologist and numerous lab work-ups related to his diabetes. [Tr. 445, 473, 476, 501-03,
50-10, 519-20]. The Plaintiff does not explain the relevance of this evidence, how it undermines
the ALJ’s assignment of little weight, or supports the limitations opined by Dr. Robinson. In fact,
the Plaintiff does not draw a connection between any of the medical evidence he cites and the
functional limitations assessed by Dr. Robinson.
Finally, the Plaintiff suggests that the ALJ’s RFC finding and overall decision denying
benefits is not supported by substantial evidence because no medical opinion of record was given
controlling weight. [Doc. 20 at 19]. A claimant’s RFC, however, is a decision exclusively
reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(2). “[T]o require the ALJ to base [his]
RFC finding on a physician’s opinion, would, in effect, confer upon the [medical] source the
authority to make the determination or decision about whether an individual is under a disability,
and thus would be an abdication of the Commissioner’s statutory responsibility to determine
whether an individual is disabled.” Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir.
2013) (internal quotation marks and citation omitted); see Simon v. Comm’r of Soc. Sec., No. 2:16CV-259, 2017 WL 1017733, at *6 (S.D. Ohio Mar. 16, 2017) (“Although the RFC must be
supported by evidence of record, it need not correspond to, or even be based on any specific
Therefore, the Court finds no merit in the Plaintiff’s assignment of error in this regard.
Complaints of Pain
The Plaintiff also argues that the ALJ failed to correctly assess his pain, ignoring medical
evidence documenting abdominal pain and pain caused from the Plaintiff’s degenerative disc
disease and peripheral neuropathy. [Doc. 20 at 19-20].
“An individual’s statement as to pain or other symptoms shall not alone be conclusive
evidence of disability . . . .” 42 U.S.C. § 423(d)(5)(A). Our appellate court has established a twostep analysis for evaluating complaints of pain. “First, the ALJ must determine whether there is a
medically determinable mental impairment that could reasonably be expected to produce the
claimant’s alleged pain and symptoms.” Courter v. Comm’r of Soc. Sec., 479 F. App’x 713, 722
(6th Cir. 2012). At the second step, “the ALJ must consider whether the alleged intensity,
persistence, and limiting effects of the symptoms actually limit the claimant’s ability to do work—
which requires a credibility finding.” Id. (citing Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476
In the instant case, the ALJ determined that the medical record did not support the severity
of pain alleged by the Plaintiff. [Tr. 59, 61]. The Court finds that substantial evidence supports
the ALJ’s finding. As to the Plaintiff’s diabetic neuropathy, the ALJ observed that the neuropathy
caused numbness and pain in the Plaintiff’s extremities and abdomen, and the Plaintiff complained
of difficulty walking. [Tr. 59]. However, physical examinations routinely noted normal muscle
strength and tone, no peripheral edema, and normal gait and station despite decreased sensation in
the lower extremities. [Tr. 59, 396, 405, 417, 469, 483, 496, 522-34]. Moreover, the Plaintiff
generally had normal range of motion, although the ALJ noted that medical records documented
decreased range of motion in the Plaintiff’s right upper extremity beginning in October 2013 as
well as complaints of a burning sensation in January 2015. [Tr. 59, 513, 522, 525].
The ALJ further considered the Plaintiff’s lower back pain attributed to degenerative disc
disease of the lumbar spine. [Tr. 59]. The ALJ discussed radiological imagining from November
2010 that confirmed minimal degenerative changes and mild scoliosis and tiny osteophytes [Tr.
59, 423, 432]. While the Plaintiff demonstrated some limited range of motion resulting from his
lumbar spine abnormalities, the ALJ observed that the Plaintiff contemporaneously exhibited
normal gait, station, and strength during the same physical examinations. [Tr. 59, 525, 530, 534].
The Court finds that the ALJ’s findings are well within the “zone of choices” provided by
the evidence. See Blakley, 581 F.3d at 406 (holding that “[t]he substantial-evidence standard . . .
presupposes that there is a zone of choice within which the decisionmakers can go either way” and
that as long as substantial evidence supports the ALJ’s finding, the fact that the record contains
evidence which could support an opposite conclusion is irrelevant) (quotations omitted).
The Plaintiff argues that “even Dr. Summers,” a consultative examiner, “found decreased
range of motion in his lumbar spine and decreased sensation to touch in bilateral lower extremities.
[Doc. 20 at 20 (citing Tr. 465)]. Yet, despite these examination findings, Dr. Summers also opined
that Plaintiff could work from a seated position, operate hand and some foot controls, had full and
unrestricted use of both upper extremities, could stand and walk for up to six hours, could lift up
to 20 pounds, and would have difficulty bending, stooping, kneeling, squatting, crouching,
crawling, and climbing. [Tr. 465]. The ALJ gave “significant weight” to Dr. Summers’s opinion
except his finding that the Plaintiff had full use of his upper extremities. [Tr. 60]. The ALJ,
instead, concluded that the Plaintiff was more restricted and limited him to frequent use of his
bilateral extremities. [Tr. 58, 60]. Thus, Dr. Summers’s findings support the ALJ’s pain
Accordingly, the Court finds the ALJ properly considered the Plaintiff’s complaints of
Finally, the Plaintiff maintains that the ALJ’s failure to properly consider his mental
limitations resulted in the ALJ asking a VE hypothetical questions that did not accurately represent
his functional abilities. [Doc. 20 at 16-17]. The Plaintiff maintains that the VE was not asked to
consider the “moderate” limitations opined by Dr. Joslin, Dr. Blase, or consultative examiner,
Kathryn Smith, Ph.D. [Id.]. As a result, the Plaintiff argues that the ALJ’s reliance on the VE’s
testimony at step five of the sequential evaluation is not supported by substantial evidence. [Id.].
At step five, the ALJ relied on VE testimony to find that other work exists in the national
economy that the Plaintiff can perform, including the jobs of small products assembler,
housekeeping cleaner, and inspector and hand packager. [Tr. 62-63, 91-92]. During the hearing,
the ALJ posed three different hypotheticals, one of which was based on Dr. Joslin’s and Dr. Blase’s
RFC findings, and another which was based on Dr. Robinson’s treating state source. [Tr. 89-93].
Ultimately, the ALJ relied on the VE’s response to the hypothetical that incorporated Dr. Joslin’s
and Dr. Blase’s RFC findings. [Tr. 62]. In the ALJ’s decision, he explained that the VE testified
to the existence of other work based on the Plaintiff’s RFC, and the ALJ relied on such testimony
in making his step five determination. [Id.]. The ALJ also explained that other hypothetical
questions were posed to the VE that included limitations that were in addition, or different from,
the RFC adopted in the decision, but that these other hypothetical questions “were necessarily
posed to the [VE] at that time in the interest of administrative efficiency,” and that the ALJ had
subsequently found, based upon a review of the entire record, that these additional and different
limitations were not supported by the evidence and therefore do not represent the Plaintiff’s RFC
as determined in the ALJ’s decision. [Tr. 62-63]; see Wagers v. Comm’r of Soc. Sec., No. 1:15CV-312, 2016 WL 4211811, at *7 (S.D. Ohio June 28, 2016) (“It is common for an ALJ to elicit
testimony from a VE using multiple hypotheticals, and later to issue an opinion based on only one
of those hypotheticals, as the ALJ did in this case.”), adopted by, No. 1:15CV312, 2016 WL
4194504 (S.D. Ohio Aug. 9, 2016); Yeager v. Colvin, No. 5:12CV02554, 2013 WL 6019204, at
*10 (N.D. Ohio Nov. 13, 2013) (“Because ALJs do not know how they will decide a matter until
the evidence of record is reviewed thoroughly, they often ask multiple hypotheticals.”).
Having found that the ALJ properly considered the Plaintiff’s mental limitations, Dr.
Robinson’s opinions, and the Plaintiff’s complaints of pain, the Court finds the hypothetical
question posed to the VE that incorporated Dr. Joslin’s and Dr. Blase’ RFC findings, and the ALJ’s
reliance on the VE’s response, was appropriate and constitutes substantial evidence at step five.
See Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001) (“A vocational expert’s testimony
concerning the availability of suitable work may constitute substantial evidence where the
testimony is elicited in response to a hypothetical question that accurately sets forth the plaintiff’s
physical and mental impairments.”).
As the Court has explained above, the “moderate” limitations the Plaintiff complains of
with regard to Dr. Joslin and Dr. Blase are not RFC findings and were therefore properly excluded
from the hypothetical questions. The Plaintiff’s argument as to consultative examiner, Dr. Smith,
fares no better. The Plaintiff complains that the VE was not asked to consider Dr. Smith’s
limitations that the Plaintiff was mildly-to-moderately limited in concentration, persistence, and
ability to adapt to changes and requirements. [Doc. 20 at 16 (citing Tr. 461)]. The Court finds the
Plaintiff’s RFC, which limits him to simple, routine, and repetitive tasks, actually accommodates
Dr. Smith’s mild-to-moderate limitations. See e.g., Smith-Johnson v. Comm’r of Soc. Sec., 579 F.
App’x 426, 436-37 (6th Cir. 2014) (holding that an RFC and hypothetical question that included
“simple, routine, repetitive tasks” adequately conveyed the plaintiff’s moderate limitation in
concentration, persistence, and pace).
Therefore, the Court finds the Plaintiff’s argument in this regard is not well-taken, and
substantial evidence supports the ALJ’s finding at step five.
Based on the foregoing, the Plaintiff’s Motion for Judgment on the Pleadings [Doc. 19]
will be DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 23] will be
GRANTED. The decision of the Commissioner will be AFFIRMED. The Clerk of Court will
be directed to CLOSE this case.
United States Magistrate Judge
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